07 August 2008

We settled two lawsuits this quarter. In neither had there been medical negligence. It's pretty galling to settle cases like these, but it's smart. The deck is stacked against us, and you have to make the good decisions, even when it is bitter.

Both cases were quite straightforward. In one, there was a DVT diagnosed and treated according to hospital protocol -- low molecular weight heparin and transition to warfarin. The patient went on to have a pulmonary embolus and recovered uneventfully with no adverse sequelae. We only settled because it was cheaper than going to trial. As galling as it was to pay, we did have the satisfaction of knowing that the plaintiff's attorney took a loss on the case. (It was a very small payout, and his preparatory expenses were considerable.)

The other case is more maddening. A very young child was dropped on his head, suffered an epidural hematoma, which was diagnosed on CT, and the child was transferred to a regional trauma center. He recovered, though with some degree of neurologic disability. The plaintiffs waited ten years to file (!) and alleged that some minor delays in CT and transfer were the cause of the bad outcome. This is obviously bogus. But we knew they were going to wheel a brain-damaged kid in front of the jury. The likelihood of losing this case was significant for that reason alone, and the risk of a big payout was significant. So we settled in the mid six figures. I hated to settle, and struggled with the decision, but with juries making decisions, it's a crap shoot, and they consistently rule in favor of sympathetic plaintiffs.

What can we do? When you are at Yellowstone, they tell you not to feed the bears because it just encourages them. But that metaphor doesn't work when the alternative is to let the bear maul you and hope that he won't get all of your food.

The real problem isn't that these suits were frivolous. I don't really know what that word means. I do know they were baseless. The problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice. This is what induces us, and lord knows how many other medical groups, to settle cases which were well-handled. When there is no correlation between whether negligence occurred and whether you win or lose, the only viable strategy is to pick your fights very very carefully.

Simply: Lay juries are not qualified to make determination of causation.

What typically happens is that the two sides present dueling expert witnesses who assert fundamentally incompatible standards. The jury is then left to decide which was more credible. How the hell are they supposed to decide which of two eminent, respected academicians is right? When medical experts disagree, how on earth can uneducated laypersons decide accurately what constitutes negligent behavior? If the plaintiff died or was severly imparied as an outcome, that inarguably biases a jury to assume that "something must have gone wrong," and their verdicts do tend to correlate.

I am also aware that the defense prevails in many or most malpractice actions. To me, this is not an indication that the system works. Quite the opposite. There have been cases of which I was personally aware in which the care was clearly substandard but the defense experts were more convincing and the jury went along. The problem is not that doctors win 87% of the time, nor that awards are out of control. The problem is that juries are unpredictable and commonly make very wrong decisions. The result of this is that in many cases patients who were injured go uncompensated (especially if they are not sympathetic victims), and that doctors who were not culpable wind up losing.

When there is not good correlation between causation and verdicts, the system falls apart. I think that tort reform is essential. But I do not particularly favor caps. Caps are clumsy and heavy-handed. Moreover, caps on awards do not get at the heart of the problem, which is the arbitrary and capricious decision-making patterns of juries. It's just as well, because caps are as dead as a doornail, politically speaking. I would like to see an alternative solution. I would prefer special health care courts or some other system which attempts to improve the accuracy of judgements.

27 comments:

It appears that many of these lawsuits are pursued by the plaintiffs to somehow compensate them for the emotional pain of having a family member with a disability. Which by the way, in the company of thousands of dollars, is not diminished in any way, shape or form but for some reason gives them a potential concrete reason for the disability rather than having to hinge their pain on the existential question of why. Unfortunate and terrible for the folks who did their very best in caring for the person only to get slapped in the face by folks who can't deal.

1. "The deck is stacked against us." That is unequivocally false. If anyone, the deck is stacked against the plaintiff, regardless of the legitimacy of the claim. You would think a plaintiff with a good claim would simply be paid by the offending party or their insurer and move on. But even in cases of clear liability that's not the case. First, the provider will clam up, hoping the short statute of limitations will run. So now they have to find a lawyer, which they hopefully don't wait too long to do because if it's within 90 days of the statute running (and most laypeople have no idea when it runs) they will have extreme difficulty finding an attorney. Then they probably have to go through several attys because few do med mal. Next they have to wait while the atty gets a consulting expert to review the case - not a testifying one - just someone to review and say "hey, there's enough here to consider going forward." This is the first person that ever tells the plaintiff anything about what actually happened, and they often say no case.

Next, the attorney has to put the insurer on notice, who instead of settling, will deny liability regardless of fault typically. Especially if there are large damages. Next, the attorney has to, in some states, find an expert willing to go on record as saying it was malpractice, and one who is a decent witness. No matter how poor of skills the physician community thinks one of their own has, they certainly would never testify against each other.

Then the plaintiff will go through at least written discovery and most likely a deposition that covers every angle of his life, from birth to the date of depo. THen the insurer will want mediation where they'll come in and explain why he's fine and their insured is saintly.

And if the plaintiff does get a trial, the physician still wins 75% of the time. Oh yeah, and all this time if he/she can't work their bills are piling up and they may be facing bankruptcy, not to mention the stress and pain from the injury. So how exactly is the deck stacked against the doc?

2. "The likelihood of losing this case was significant for that reason alone, and the risk of a big payout was significant."

How significant? What exactly are the odds in your venue? Do you know?

3. "he problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice."

Ah, here's the problem. The people in charge of when you settle are using anecdotal evidence from NEWSPAPERS to make their decisions. Never mind the fact that a newspaper distills a weeklong trial into a column. Or the fact that you assume that although journalists never get medical issues right they hit legal ones right on the nose. Or that the amount a jury awards may not be anything near the actual payout. If I were paying into your system and this was the basis upon which you were settling cases I would want my money back.

As for your solutions - here's a better one - pay legit claims promptly. Special "health courts" are nonsense. First, the proposal you link to is just backdoor damage caps - read it. Common Good is run by a partner at the tobacco industry's main law firm and he's been their lobbyist for years. Do you really think they're interested in making sure more injured people get paid and paid quicker? Second, who is going to pay for these special health courts? And what will it cost? And exactly how are you going to train judges so they'll be, in your opinion, more accurate? Will each state have a judge for each specialty who roams around trying cases?

You say it's clear the current system is a "miserable failure." Yet your only solution is apparently something you haven't even studied or thought about in any detail. To support your claim you give us nothing but anecdotal evidence. You say juries are unpredictable and "commonly" make the wrong decision? This is true because. . . you say so? What level of accuracy do you require? The same as in medicine? I'm guessing not, because when things go wrong in medicine physicians just throw up their hands and say "well, there are some things we just can't control."

It appears you need to think about this issue a little more before you go pontificating, because right now you're just giving us tired insurance company talking points.

And I wonder why medical costs are through the roof or that many in healthcare these days (patients and docs) feel that the "humanity" has gone out of it. This is such an adversarial system the way we have it set up that it is bound to fail both physician and patient time and again....

It sounds like anonymous is a personal injury lawyer. I disagree with him/her on multiple points.

No matter how poor of skills the physician community thinks one of their own has, they certainly would never testify against each other.

And you say the newspapers use hearsay and anecdotal evidence!

As for your solutions - here's a better one - pay legit claims promptly. Special "health courts" are nonsense.

And who decides which claims are legit? A negative outcome doesn't always mean malpractice, and malpractice can occur even without a negative outcome.

You point to the supposed difficulty of finding an expert who's willing to go on record and who's also a "good witness." If it's truly malpractice, what does it matter if someone's a good witness? Res ipsa loquitur, right? If you're relying on whether someone can look good in front of a jury, then your case is already flawed.

Second, who is going to pay for these special health courts? And what will it cost? And exactly how are you going to train judges so they'll be, in your opinion, more accurate?

First of all, who pays for it now? Obviously attorney fees come out of a settlement or judgement, but how are the indirect costs (e.g. time occupying courtroom, stenographer's salary, etc.) handled?

How should judges be trained? Well, the National Judges' Medical School is a start.http://www.ama-assn.org/amednews/2008/07/28/prsa0728.htm

A medical court system maintains adversarial positions. I favor a publicly funded, no-fault, adverse outcome system. Some adverse outcomes are absolutely unavoidable. The patient/family bear a heavy financial burden of care, regardless of whether egregious errors were made. These are best dealt with by disability insurance (patient's burden), but most people don't pre-subscribe to this possibility.

To apply this idea to your two cases, the challenge is to assign adverse outcome to medical care, vrs. trauma vrs. natural history.

Imagine the financial and guilt burden for the family of the child you described. Allow them to dip in the "adverse outcome" well? The kid need extra resources; it doesn't matter where the money comes from .

While I have no answer that would satisfy you or opponents, I do have a couple of thoughts that might fairly be characterized as glib:1. If it weren't for that pesky Seventh Amendment to the United States Constitution, we could just abolish trial by jury.2. "Where there is law, there is injustice" (from Oliver Twist, I think).

What is amazing is that there are 2 "experts" willing to testify against the care you (or whomever) provided. Kind of negates comment of lawyer anonymous..."No matter how poor of skills the physician community thinks one of their own has, they certainly would never testify against each other"

It is really frustrating to me that you would settle these and "feed the bears". I understand the business decision, but this is a long term war against this insanity.

I belong to a very large group and we vigorously defend these even if it would cost less to settle. As such we have made an indemnity payment in less than 5% of claims.

One of my partners had a case that occurred 1 year before his retirement. It was a bad outcome in which they could bring out a wheelchair bound person in front of the jury. His care was completely standard of care, appropriate and defensible, but he didn't want to go through the mental stress and asked that we settle for policy limits. Since he was retired a "black mark" or data bank entry didn't concern him. (we are self insured). We took it to trial anyway and prevailed.

People need to know this is not the lottery to play. Settleing these cases is wrong in principle and does us no favors in the long run.

BTW, were the doctor involved coerced into settling or did they willingly go along with the idea?

Settling these cases is wrong in principle and does us no favors in the long run.

*Nods* A few little payouts each year and a big payout or two at hundreds of hospitals in hundreds of cities makes us pay hundreds more each month for health insurance and keep many out of the insurance market for many reasons.

PS The Democrats are not doing anything to prevent frivolous lawsuits.

Check this post out to see the idiocy. I linked Slate/Ezra Klein because he's one of your peeps. The Democrats want to reduce medical malpractice payouts by "reducing medical errors". Uh, how would that plan have helped in either of these cases? It's something to say that won't turn the the lawyers against them (Lawyers *Heart* Democrats for this reason).

Tort reform reduces the cost of health care SIGNIFICANTLY. Until then, Shadow, I encourage you to follow in ad's footsteps, smile pretty for the cameras and stick it to plaintiff's attorneys backwards and sideways.

Actually, I'm telling you from actual experience in trying to find an expert in a case with clear liability. I've handled maybe 3 malpractice cases in my life, all except one low damages and all slam dunk liability from the start. Anecdotal, yes. Hearsay, no. Would you testify against someone in your city if you thought there was malpractice?

"And who decides which claims are legit? A negative outcome doesn't always mean malpractice, and malpractice can occur even without a negative outcome."

I agree. Although without damages, you don't have the elements for a prima facie case.

"Res ipsa loquitur, right?"

Not in malpractice. Most state statutes require a testifying expert for professional malpractice.

"I would like him to explain how settling promptly cases liability would prevent frivolous cases from this being filed."

I don't know that it would. I was referring to the comment that the deck was stacked against the doc. That's nonsense. That being said, med mal is about the worst type of case to file a "frivolous" one. It's too damn expensive and the odds are so great against you. Plus the trial lawyers for the defense are usually very good. If you were going to file nonsense cases, you'd be better off filing on car wrecks. That's just basic economics.

"PS The Democrats are not doing anything to prevent frivolous lawsuits."

How does one "prevent" frivolous lawsuits in this context? Is there someone who somehow sees the evidence before the cases are filed and decrees from on high that the circuit clerk should not let them even pay the filing fee?

"Tort reform reduces the cost of health care SIGNIFICANTLY."

Because. . . you say so? How much cheaper is care in California, which has had draconian "reform" for decades, vs. a state like Tennessee, which hasn't decided to let insurance lobbyists decide the value of cases?

"Until then, Shadow, I encourage you to follow in ad's footsteps, smile pretty for the cameras and stick it to plaintiff's attorneys backwards and sideways."

Until, of course, you're the victim of malpractice. Because if it's you, the physician's insurer will surely recognize your greatness and be willing to pay the hundreds of thousands, if not millions, for your future care and lost quality of life? All you'll have to do is ask politely? Maybe in an email?

A friend of mine who is a practicing civil attorney describes jurors as "people too stupid to get out of jury duty". He goes on to discuss how he was trained (in law school) to select jurors with the least education and greatest gullibility.

I'm betting your friend doesn't try many cases. Every experienced trial lawyer, not just paper pusher, will tell you the dumbest thing you can do is think the jury is stupid. And every trial practice training class teaches you the exact opposite of what your friend told you.

Yet multiple western countries have a version of this that work just fine. Imagine. I know the USA is so much different than the rest of the world it won't work here. At least according to you.

"The same as in medicine? I'm guessing not, because when things go wrong in medicine physicians just throw up their hands and say "well, there are some things we just can't control."

According to...you? Since you are so knowldgeable about medicine please to justify your statements with referneces. Otherwise, it is just your opinion. Opinions are like assholes. Everybody has one.Doesn't mean they are worth a damn CJD.

"Yet multiple western countries have a version of this that work just fine."

Which ones? Do tell. When you figure those out let's discuss the pros and cons of those systems.

Are they ones that also have universal healthcare and a deep social safety net, so a debilitating injury caused by malpractice isn't as crushing to your financial life as well as your physical? You guys love to cite other countries' legal systems, even though you know precious little about them, but you never seem to want to adopt the medical systems. Guess it depends on whose ox, eh?

"Since you are so knowldgeable about medicine please to justify your statements with referneces."

Read any physician blog with a post discussing malpractice. They're replete with "sometimes bad things just happen" comments. Let something bad happen to a physician, however, and you guys are calling for Constitutional amendments! I agree with you, though, I don't think that position is worth much.

"The problem is not that doctors win 87% of the time, nor that awards are out of control. The problem is that juries are unpredictable and commonly make very wrong decisions."

My problem with professional juries, or medical courts, is like my problem with my own opinions about nuclear power. I am very pro-nuclear power, and was trained by the Navy and the civilian nuclear power industry. So, what does the second part make you think about the opinion expressed in the first part. On the one hand, I know more about nuclear power than your college tree hugger. On the other hand, I have to admit my information has all come from sources interested in the survival of nuclear power.

Perhaps you could have lay juries make specific findings of fact and then MDJD Administrative Law Judges could make findings of law with regard to causation and damage.

I don't know.

What percentage of our health care costs are related to malpractice payments/insurance? What percentage of the payments are wrong?

What percentage of our health care costs are related to malpractice payments/insurance?

your question is so logical, but unanswerable. From time to time, someone tries to study this , but it is impossible. The cost of defensive testing , some of which leads to more testing and more procedures is enormous and unfathomable. For (almost) every clinical question presented to a doctor, s/he inevitably acts or tests or talks in a defensive way. It is deeply embedded in the way we think. Honestly, I feel doctors don't think well because we are so defensive-skewed and tortured by the need to generate defensive charts.

Not only is the cost of defensive testing impossible to measure, the term is impossible to define. And even more oddly, physicians claim they do it all the time, but none of them have a clue if it works, or if it does, what amount their risk is reduced. Frankly, few even have any concept of their risk. Yet we're supposed to make policy decisions with such little info based on these claims?

I agree with anonymous's first comments and then with the comments of ad. And I'm an academic economist rather than an attorney.

In my local area, the defendants fight all claims. The plaintiff attorneys know this.

Your decisions to settle because of anecdotal instances of large awards described in newspapers is nuts and not based in any legal or law and economics research. Thinking of your actions using game theory in a world of repeated games, you are just setting your self up for more and more lawsuits in the future by getting a reputation for making six figure payouts for frivolous claims. You have a Sue Me Now sign on the back of your jacket.

I consider the settling of a weak case to be treason to clinical care. One must hire a personal lawyer to totally terrorize the insurance defense attorney, the insurance company, the plaintiff, the plaintiff lawyer, and the judge.

You must demand total e-discovery and put all enemies of clinical care through the wringer.

One should continually file ethics complaints against the plaintiff lawyer, the plaintiff expert.

One must countersue where possible. One should file a cross claim against all co-defendant to prevent any from settling without permission.

One must insist that the plaintiff get excluded from the trial to avoid the emotional reaction.

One has to appeal the case as far as it takes.

If one does that, the land pirates do not come back. This is painful, but an investment in the future. The more inflicted, the longer it will take for the land pirates to return.

The defendant doctor has no chance of persuading the treasonous insurance company defense attorney of this tactic. The latter wants the longest trial possible to break even. He does not want to do anything that will end the trial halfway. That is why it is imperative to hire a personal attorney who can "persuade" this insurance company lawyer, especially if specializing in legal malpractice lawsuits.

Shadowfax

About me: I am an ER physician and administrator living in the Pacific Northwest. I live with my wife and four kids. Various other interests include Shorin-ryu karate, general aviation, Irish music, Apple computers, and progressive politics. My kids do their best to ensure that I have little time to pursue these hobbies.

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